Last month, the Pennsylvania Supreme Court adopted the federal standard for automobile searches, effectively changing well-established criminal law in Pennsylvania. Click here for a discussion of the Com. v. Gary decision.

Most clients who walk in the door are confused by the concept that federal law differs from state law, especially in the criminal justice system. The primary reason for this is the U.S. Constitution, which forms the basic rights of all citizens and residents of the U.S. In addition, each state has its own constitution, so there are separate state laws which apply to a given state.

Basically, federal constitutional law forms the floor or minimum standard. All states must, at the very minimum, comply with federal constitutional law. However, under the tenth amendment to the U.S. Constitution, the police power is reserved for the states, which accordingly, have the right to pass laws for the general health, safety and welfare of state citizens. This explains why there are two bodies of criminal law, federal and state.

Pennsylvania adopted its own criminal laws including constitutional laws based on the Pennsylvania Constitution, which is very similar to the U.S. Constitution. These state constitutional laws apply to Pennsylvania state criminal cases; so long as they, at a minimum, comply with federal constitutional law.

Related: Auto Stop Yielding Large Amounts of Cocaine, Suppression Granted by Philadelphia Trial Judge


Under federal law, police officers can stop and search a car so long as there is probable cause to do so. Probable cause is usually defined as a reasonable belief that a crime has occurred, and the person being investigated committed it. Probable cause usually exists if the officer has a sufficient factual basis to form a reasonable belief that an offense has been or is being committed.


Before the Gary decision, Pennsylvania automobile search and seizure law was more restrictive than federal law. Basically, Pennsylvania constitutional law required that officers have something more than just probable cause. Auto searches and seizures were allowed under PA state law, only if the officers had both probable cause and an exigent circumstance. An exigent circumstance usually means an emergency situation, like protecting the general public.

Now, after the Gary decision, Pennsylvania auto stop law mirrors federal law. Police can now stop a driver for a traffic offense and can search the vehicle if the stopping officer has probable cause to believe a crime is being committed. From a practical standpoint, all an officer has to do is indicate that they smelled the odor of drugs, like marijuana or crack, to justify searching the vehicle.

Over 40 years ago, the U.S. Supreme Court quite famously recognized that while there is an automobile exception to the warrant requirement, “the word ‘automobile’ is not a talisman in whose presence the fourth amendment fades away and disappears.” See Coolidge v. New Hampshire, a 1971 U.S. Supreme Court case. With recent court cases that have chipped away at the fourth amendment, the principle recognized in this statement has effectively been eviscerated.

If you’re facing criminal drug or gun charges in Pennsylvania and need legal help, please call our criminal lawyers for a free case evaluation. Our lawyers will pursue any search and seizure suppression issues. (215) 564-0644